By: Barry Dorans

In general, a party to litigation has a duty to preserve evidence that may be important in litigation. For example, an owner contends that a contractor failed to properly install flashing and then hires a new contractor and that contractor removes the flashing and reinstalls it properly. When the matter goes to trial, while the second contractor may say he observed the flashing was installed improperly, the judge will be in a difficult position to rule since the original contractor never had an opportunity to see the condition or confirm that the flashing had been improperly installed. Accordingly, the better practice is that once a defective condition is found that notice be given to the defendant and allow them an opportunity to inspect before any steps are taken to correct the problem. If an owner fails to do so, it runs the risk that a fact finder will not persuaded by the testimony of the second contractor concerning the condition that he observed. The defendant will argue the second contractor had a motive to claim it was done improperly. Even if the second contractor has taken photos, the defendant may still contend that the photos could have been staged and thus the best practice is to give prompt notice.

If an owner fails to give notice and changes the conditions, not only does he run the risk that the claim is less believable, there is a question as to whether the defendant can raise spoliation as a defense. Although spoliation instructions vary, in some cases a court will instruct the jury to accept that the defendant’s version of the facts are correct based on the plaintiff’s destruction of evidence. Alternatively, a court may give an instruction that the jury may infer that if the evidence had been available, it would have been detrimental to the plaintiff. In a recent case, Emerald Point, LLC v. Hawkins, ___ Va. ____ (2017), the Virginia Supreme Court clarified that a spoliation instruction is not appropriate unless there is evidence that the party intentionally committed misconduct or acted with bad faith. In that particular case, a landlord had removed a furnace from an apartment on January 4, 2013, kept it in storage for approximately one year, and then disposed of it. Months after the furnace was disposed of, a lawsuit was filed claiming that the furnace had a defect which caused injury to the tenants. While the Circuit Court granted a spoliation instruction, the Supreme Court reversed. The Supreme Court stated since there was no finding that the landlord acted with bad faith or had an intention to destroy evidence, the spoliation instruction should not be given.

Again, the best practice for an owner is to preserve any evidence and give a defendant an opportunity to inspect it before any change to the conditions are made. In light of this recent ruling, so long as the plaintiff acts with good faith, it should not be subject to a spoliation instruction.